Picture this: over a century ago, in the stately halls of Berlin, seven European powers, Britain, France, Portugal, Germany, Belgium, Spain, and Italy, gathered to carve up Africa with rulers and pens. Between 1884 and 1914, they imposed borders that severed communities, fractured economies, and disrupted centuries-old trade routes. Only Liberia and Ethiopia escaped this colonial cartography.
The Nigerian scholar Olyae mi Akinwumi captures this tragedy starkly: “The partition of Africa was done without any consideration for the history of the society… It inflicted irreparable damage on Africa, damage that many countries still suffer today.” These lines, drawn in European capitals, became the prison bars of our modern nations. It is at the heart of Africa’s development crisis.
When the Organisation of African Unity was formed in 1963, Africa’s leaders chose pragmatism: preserve these colonial borders “for now,” prioritising peace over unity. Paradoxically, six decades later, those same lines remain fiercely protected, even as they undermine Africa’s economic consolidation potential.
Now, with the African Continental Free Trade Area (AfCFTA), we stand at a historic threshold. AfCFTA promises the world’s largest free trade area by membership. With 1.5 billion people and $3.4 trillion in GDP, the size of this economy, if combined, is projected to double by 2035. It is the boldest attempt since independence to transform Africa’s fragmentation into continental strength. But here is the hard truth: without a supranational court to enforce its rules, AfCFTA will remain a hollow aspiration.
The AfCFTA’s Dispute Settlement Body: Important but Insufficient
At the heart of AfCFTA’s legal architecture is the Dispute Settlement Body (DSB), modelled more on the Organisation (WTO) system. The DSB is composed of representatives of member states and oversees panels that adjudicate disputes between states concerning trade in goods, services, and investment. In theory, it can authorise retaliatory measures if a state fails to comply with a ruling.
But there are four critical limitations:
1.State-to-State Focus – Only governments can bring disputes. The private sector, SMEs, traders, and investors, who are the true drivers of AfCFTA, have no standing. This leaves most cross-border trade conflicts unresolved or politicised.
2.Ad Hoc Nature – Panels are set up on a case-by-case basis and lack permanence, which slows proceedings and undermines consistency in legal interpretations across the continent.
3.Political Enforcement – Compliance relies heavily on peer pressure and diplomacy rather than binding enforcement mechanisms. There are no automatic penalties or sanctions to deter breaches.
4.Fragmentation with Regional Blocs – The DSB must navigate overlaps with ECOWAS, SADC, EAC, and other regional courts and protocols, creating confusion and jurisdictional gaps.
This system, while a step forward, is designed for isolated trade disputes, not for deep market integration. It cannot resolve the daily frictions that SMEs face at borders, nor can it guarantee the uniform application of AfCFTA rules across 54 diverse legal jurisdictions. For that, Africa needs a permanent supranational court with authority over national law.
The Missing Judicial Pillar
Contrast the DSB’s limitations with the European Union’s Court of Justice (CJEU). Through doctrines of primacy and direct effect, EU law overrides conflicting national law, even constitutions. Two landmark rulings illustrate this:
•Costa v ENEL (1964): An Italian citizen challenged Italy’s nationalisation of its electricity sector, claiming it violated European Community law. The CJEU ruled that European law is supreme over conflicting national laws, even those enacted later, establishing the doctrine of primacy as the cornerstone of Europe’s single market.
•Factortame (1990): Spanish fishermen contested the UK’s Merchant Shipping Act, which limited foreign ownership of British fishing vessels. The CJEU held that UK courts must disapply domestic laws that conflict with EU law, even if passed by Parliament, cementing the doctrine that national legislation must yield to supranational commitments.
Without such rulings, Europe’s “four freedoms”, namely, movement of goods, services, people, and capital, would have remained aspirational slogans rather than enforceable rights.
Lessons from the United States
The United States offers another powerful precedent. Its single market emerged not by political consensus alone but through federal court rulings that entrenched federal supremacy over state laws.
•McCulloch v. Maryland (1819): The Supreme Court ruled that states could not tax or obstruct federal institutions, cementing the doctrine of federal supremacy.
•Gibbons v. Ogden (1824): The Court struck down New York’s attempt to regulate steamboat trade, affirming federal authority over interstate commerce as the cornerstone of America’s single market.
•Heart of Atlanta Motel v. United States (1964): The Court used federal commerce powers to enforce civil rights in private businesses, showing how market integration could drive broader societal progress.
These rulings and many others transformed 13 fractious colonies into the seamless $27 trillion economy we know today. The principle is clear: a single market requires enforceable supremacy of continental law over domestic law.
The Cost of Weak Enforcement
If Africa had such a court today, with binding “disapplication” powers to override conflicting national laws:
•Free Movement Protocols would be enforceable.Ghanaians and Nigerians would not face retail restrictions or harassment when trading in each other’s markets.
•The Single African Air Transport Market would be operational, ending fragmented bilateral air agreements that keep intra-African flights costly.
•Visa-Free Africa would be real, allowing Africans to move, trade, and invest across borders with dignity.
•Digital trade would be accelerated. This would ensure the mandatory rollout of the Pan-African Payments and Settlement System (PAPSS), for example, rather than voluntary or discretionary approach we have.
PAPSS and Mobile Money: A Silent Revolution
It must be stressed that PAPSS and continent-wide mobile money interoperability, combined, have the potential to achieve what regional blocs like ECOWAS have struggled with for decades: monetary convergence. The practical benefits of having a single currency can be effected without having a single currency, if digital payment systems of interoperability are brought to full use in cross-border transactions in Africa.
If African leaders acknowledge the roll of the digital economy in African economies now and for the future, then we should with greater urgency adopt the use of distributed ledger technology and standardised API interfaces to allow instantaneous payment settlement between different currencies and from different countries, and by eliminating the need for correspondence banks. Thus, a near future where a Ghanaian can buy a dress from a Kenyan tailor she finds on Instagram, pays in cedis, and have the seller receive shillings instantly, no dollars, no forex queues, no wahala.
In 2024, the Africa Prosperity Network (APN) pushed this cross-border interoperability agenda with various stakeholders across regions. Through the President of Ghana, it was unanimously endorsed by the AU and regional economic communities at the 6th Midyear Coordination Meeting held in Accra at 21 July 2024. Yet even if this is to translate into a decision at the next AU Summit in Addis Ababa, it will still remain optional, with no obvious consequences for non-implementation.
This is Africa’s greatest integration tragedy: bold commitments at summits in the form of treaties and protocols, but selective execution at home. Only a supranational court can change this dynamic.
The 2030 Imperative
By 2030, I believe AfCFTA must have a fully operational African Commercial Court of Justice (ACCJ) with powers to:
•Resolve trade, competition, and free movement disputes with final authority.
•Override conflicting national laws undermining AU commitments.
•Provide preliminary rulings to ensure uniform interpretation across member states.
•Grant direct access to businesses and individuals, not just states.
•Enforce compliance through fines, sanctions, or trade remedies.
This court would anchor AfCFTA, harmonise rules, give investors certainty, and prevent protectionist backsliding that fragments our market.
Making Africans Believe the Market Is Real
AfCFTA will succeed only when Africans believe it is real. When a farmer in Zambia can sell maize to Congo without arbitrary fees; when a fintech startup in Nairobi can seamlessly operate in Casablanca; when an Instagram entrepreneur in Accra can sell to Lagos without exchange headaches, then the single market becomes tangible.
From 4-6 February 2026, Accra will host an anticipated 5,000 delegates from over 100 countries, at the Africa Prosperity Dialogues 2026 under the theme: “Empowering SMEs, Women, and Youth: Innovate. Collaborate. Trade.” But the easiest way to do so in order for these critical groups to own and drive Africa’s single market, is to ensure that their cross-border ambitions are not thwarted by customs and immigration officers, protectionist unions, or inconsistent domestic regulations. Enforceable continental law is not a luxury; it is the foundation of trust and mobility in the single market.
A Call for Courage
Africa’s borders were drawn in European capitals. It is time to redraw them, not on maps, but in law. Ceding limited sovereignty to a continental court is not surrender; it is the price of dignity and prosperity for all Africans, including Global Africans. It is what will strengthen the collective sovereignty of Africa and Africans.
If we are serious about building beyond a $3.4 trillion market for 1.5 billion Africans, we must be serious about the rules that bind it and the court that enforces them.
Europe and the United States both demonstrate this truth: markets do not unify by goodwill; they unify through enforceable law. Africa can no longer do what seems convenient as against what works, boldly, decisively, and without delay.
By 2030, the African Commercial Court of Justice must be in place. The world will not wait. Neither can we.
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About the Author:
Gabby Asare Otchere-Darko is one of Africa’s leading corporate lawyers. Founder and Executive Chairman of the Africa Prosperity Network and Senior Partner at ALPi Ghana (Africa Legal Associates), part of a Pan-African law group operating in 11 African countries, specialising in the single market. He also co-chairs the Commonwealth Legal Network and advocates for deeper African economic and legal integration._ He may be reached on gabby@africaprosperity.network
